McMullen v. State , 200 Ga. 812 ( 1946 )

Where an extraordinary motion for new trial based upon newly discovered evidence is filed, and the State makes a counter-showing which contradicts the evidence upon which the motion is based, it is not an abuse of discretion for the trial judge to overrule the motion. Morris v. State, 177 Ga. 365 (170 S.E. 217), and cit.

Judgment affirmed. All the Justicesconcur.

No. 15446. MAY 9, 1946. REHEARING DENIED JUNE 6, 1946. The accused was convicted of murder. The case was brought to this court and affirmed. See McMullen v. State, 199 Ga. 521 (34 S.E.2d 892). Subsequently an extraordinary motion for new trial was filed, and to the judgment overruling this motion the plaintiff excepts.

The extraordinary motion for new trial is based upon the grounds of newly discovered evidence. In support of this motion the accused relies upon the affidavit of Sallie Mae Thurman, who states that she witnessed the homicide and relates facts and circumstances which would tend to establish the homicide as being justifiable. To this evidence the State made a counter-showing, as follows: Georgia Henderson denied statements made as to what occurred just prior to the homicide. Alementha Henderson denied statements made as to what occurred immediately after the homicide, and further stated that Sallie Mae Thurman was not there at the time of the homicide. J. D. Pope, Sheriff, testified that he went to the scene the night of the homicide, and Sallie Mae Thurman then told him that she was not there at the time of the shooting, that she was some distance away and heard the shot, and further that she knew nothing about the shooting or any events leading up to it. This witness further said that he was acquainted with the general character of Sallie Mae Thurman and she was unworthy of belief. Ernest Grier testified that he was with Sallie Mae Thurman at the time the shots were fired, that they were three or four hundred yards away, and that it was at night and too dark to see from that distance. He further stated that after the shooting they went to the scene and remained there until Sheriff Pope arrived, and that both he and Sallie Mae Thurman stated these facts to the sheriff.